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EQUICO LESSORS v. GEORGE E. EWING (09/05/80)

filed: September 5, 1980.

EQUICO LESSORS, INC., A CORPORATION
v.
GEORGE E. EWING, AN INDIVIDUAL, APPELLANT



COUNSEL

George E. Ewing, Pittsburgh, for appellant in pro. per.

Maury D. Nusbaum, Pittsburgh, for appellee.

Spaeth, Hoffman and Van der Voort, JJ.

Author: Van Der Voort

[ 281 Pa. Super. Page 149]

The two actions and three appeals which have been consolidated herein for hearing and decision arose out of an equipment lease agreement for office furniture which George E. Ewing, (hereinafter Ewing), appellant herein, leased from Equico Lessors, Inc., (hereinafter Equico) appellee herein. Mr. Ewing fell in default on his payments and Equico confessed judgment against him for $6,469.78 under a Warrant of Attorney which he signed. Ewing moved to have the judgment opened, and the refusal of the Court to grant this motion is the basis for one of the appeals.

Equico also filed a Complaint in Replevin and a Motion for a Writ of Seizure, based on averments that the property was in jeopardy and deteriorating in value. The Writ of Seizure was granted, bond posted and the property reclaimed. Ewing's Motion to set aside the Writ of Seizure was denied and this ruling is the basis of a second appeal.

In response to the Complaint in Replevin, Ewing pleaded by way of New Matter and a Counter-Claim that Equico was subjecting him and his credit standing to a "campaign of harassment and slander". Upon Equico's Motion, the new Matter and Counter-Claim were stricken. This ruling is the basis of a third appeal.

[ 281 Pa. Super. Page 150]

Ewing, an attorney of more than twenty years experience at the Allegheny County bar served as his own counsel throughout.

1. The Refusal to Open the Judgment. Ewing has appealed from the refusal of the Court to open the Judgment taken by confession on September 5, 1978. His petition to strike or open the judgment was filed on September 28 and amended on October 12 to include the contentions that the lease agreement containing a confession of judgment clause is a contract of adhesion, that the confession of judgment clause is unconstitutional in that it provides for judgment without prior hearing and notice, that the initial execution of the lease agreement was induced by fraudulent statements, that a past practice of allowing Ewing to fall several payments behind was condoned by Equico and constituted a waiver of its right to take a default judgment, and that the confession of judgment was a part of a campaign by Equico to harass and slander Ewing.

Ewing failed to produce any evidence by testimony or deposition to support any of the allegations in his petition. Equico filed an answer on November 30, denying Ewings contentions. Equico sought to take Ewing's deposition on December 7, but Ewing failed to appear and offered no explanation, although he had due notice of the hearing. On December 15, on motion of Equico of which Ewing had notice, the Court ordered Ewing to proceed pursuant to Pa.R.C.P. 209 within fifteen (15) days or Equico might order the matter set for argument on petition and answer. In that event, Rule 209 provides all averments of fact responsive to the petition and properly pleaded in the Answer are to be deemed admitted. Ewing scheduled two depositions but twice cancelled both within a few hours of the time that they were scheduled to begin. Equico undertook to take Ewing's deposition but he failed to appear. No other depositions were scheduled. On February 9, 1979, Equico moved and the Court ordered the matter brought on for argument on the pleadings, the responsive averments in Equico's Answer to be taken as admitted, as provided in Rule 209. The

[ 281 Pa. Super. Page 151]

    argument was held on March 16, 1979 and at the conclusion of the hearing, the Court dismissed Ewing's ...


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